J-A19004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALEX MCGINTY, JR. : No. 561 EDA 2019
Appeal from the Order Entered January 15, 2019
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002173-2014
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 06, 2019
The Commonwealth of Pennsylvania appeals from the order granting the
motion to dismiss pursuant to Pa.R.Crim.P. 600 filed by Appellee, Alex Robert
McGinty. The Commonwealth contends that the trial court
misapplied Rule 600 and erred in finding that the Commonwealth failed to
exercise due diligence. The trial court held:
The Commonwealth is required to act with due diligence
throughout this period and maintain adequate records to
ensure compliance with Rule 600. The Commonwealth
failed to submit records of any efforts to bring Defendant
to trial within the time constraints of Rule 600. We find
that the facts here are more akin to [Commonwealth v.
Barbour, 189 A.3d 944 (Pa. 2018)] and we will grant
Defendant Motion to Dismiss pursuant to Pa.R.Crim.P. 600.
Trial Court Opinion, 1-15-19, at 8. We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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We need only summarize the procedural history of this appeal. On
September 24, 2012, the Commonwealth filed a Criminal Complaint charging
Appellee with two counts of Aggravated Assault1 and Assault by Prisoner.2
Bail was set on September 27, 2012, however, Appellee was unable to
make bail and was incarcerated. Following a number of continuances, mostly
requested by Appellee, a preliminary hearing was finally held on October 27,
2014, during which Appellee waived all of the charges into court.
A Criminal Information was filed on November 20, 2014. A bail hearing
was held on December 8, 2014, which resulted in Appellee being immediately
released on unsecured bail. The case was placed on the Criminal Trial Term
for February 2015.
On January 28, 2015, the trial court removed the case from the February
trial list and placed it on the March 2015 Criminal Trial Term. A status
conference was scheduled for February 18, 2015, with counsel and Appellee
ordered to appear. However, Appellee did not appear for the February 18 th
conference, and the conference was continued to February 25, 2015. The trial
court was under the impression that a bench warrant had been issued on
February 18, 2015, following the Appellee’s nonappearance, however a review
of the docket entries indicates that no bench warrant had been issued on that
day. On February 25, 2015, the trial court again noted that Appellee had
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1 18 Pa.C.S.A. §§ 2702(a)(2) & (3).
2 18 Pa.C.S.A. § 2703(a).
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failed to appear, and mistakenly referred to the earlier bench warrant, which
had not been issued.
A pre-trial conference was eventually scheduled for June 6, 2018, which
was continued to August 22, 2018.3 Once again, the Appellee was ordered to
appear for the pre-trial conference. On August 2, 2018, Appellee filed a motion
to dismiss based upon an alleged violation of Pa.R.Crim.P. 600. A hearing was
held on the motion on September 20, 2018.
Following the hearing, and the filing of briefs by the parties, the trial
court filed an opinion and order on January 15, 2019, which granted the
motion and dismissed the Criminal Information with prejudice.
This appeal was timely filed by the Commonwealth. The trial court
properly filed a Statement in accordance with Pa.R.A.P. 1925(a), which
directed our attention to the opinion of January 15, 2019.
The trial court found that the mechanical run date for purposes of Rule
600 was March 23, 2013 because of the Appellee’s pretrial incarceration. The
trial court further noted that the Appellee had been released on unsecured bail
on December 8, 2014, which was past the mechanical run date. As stated
above, there was, at least, a desire in the trial court to issue a bench warrant
after the Appellee’s nonappearance in February 2015. In citing to
Commonwealth v. Barbour, 189 A.3d 944 (Pa. 2018), however, the trial
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3 See Trial Court Orders of May 22, 2018, June 6, 2018, and July 25, 2018.
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court found that the Appellee’s Rule 600 rights had already been transgressed
by that time. See Trial Court Opinion, 1/15/19, at 7.
On appeal, the Commonwealth argues that the majority of the delay in
this case was the cause “of either the Appellee seeking continuances of his
case, or his being absent from the proceedings without cause, leading to the
issuance of a bench warrant”. See Appellant's Brief at 4.
By way of further background to the Commonwealth's arguments, there
does not appear to be any dispute that the mechanical run date
under Rule 600(A)(1) expired on March 23, 2013. We have diligently reviewed
the docket entries which are available, and we are constrained to agree with
the trial court that the adjusted run date had expired prior to the Appellee’s
nonappearance in 2015.
On appeal, the Commonwealth emphasizes that the trial court was
under an obligation to exclude any time or delay attributable to the Appellee,
as well as any excusable delay that occurred due to circumstance beyond the
Commonwealth’s control and despite its due diligence. Commonwealth's Brief
at 10. The Commonwealth asserts that Appellee’s requests for continuances
up until his willful failure to appear on February 25, 2015 amounted to 637
days. If the trial court had accounted for these delays, then there was no Rule
600 violation up to the February 25, 2015 conference.
The standards governing our review are well established.
[O]ur standard of review of a trial court's decision is
whether the trial court abused its discretion. Judicial
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discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after
hearing and due consideration. An abuse of discretion is
not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown by
the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on
the record of the Rule 600 evidentiary hearing, and the
findings of the trial court. An appellate court must view the
facts in the light most favorable to the prevailing party.
Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa. Super. 2019)
(citation and internal alterations omitted), appeal denied, 216 A.3d 226 (Pa.,
filed July 2, 2019).
Rule 600 provides:
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial,
or the defendant tenders a plea of guilty or nolo
contendere.
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days
from the date on which the complaint is filed.
***
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any
stage of the proceedings caused by the Commonwealth
when the Commonwealth has failed to exercise due
diligence shall be included in the computation of the time
within which trial must commence. Any other periods of
delay shall be excluded from the computation.
***
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time
before trial, the defendant's attorney, or the defendant if
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unrepresented, may file a written motion requesting that
the charges be dismissed with prejudice on the ground that
this rule has been violated. A copy of the motion shall be
served on the attorney for the Commonwealth concurrently
with filing. The judge shall conduct a hearing on the
motion.
Pa.R.Crim.P. 600(A)(1), (A)(2)(a), (C)(1), (D)(1).
As this Court has stated:
Rule 600 serves two equally important functions: (1) the
protection of the accused's speedy trial rights, and (2) the
protection of society. In determining whether an accused's
right to a speedy trial has been violated, consideration
must be given to society's right to effective prosecution of
criminal cases, both to restrain those guilty of crime and
to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to
insulate the criminally accused from good faith prosecution
delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental
speedy trial rights of an accused, Rule 600 must be
construed in a manner consistent with society's right to
punish and deter crime. In considering these matters ...,
courts must carefully factor into the ultimate equation not
only the prerogatives of the individual accused, but the
collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1135 (Pa. Super. 2011)
(citation omitted). Furthermore,
Rule 600 “provides for dismissal of charges only in cases
in which the defendant has not been brought to trial within
the term of the adjusted run date, after subtracting all
excludable and excusable time.” The adjusted run date is
calculated by adding to the mechanical run date, i.e., the
date 365 days from the complaint, both excludable time
and excusable delay. “Excludable time” is classified as
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periods of delay caused by the defendant. “Excusable
delay” occurs where the delay is caused by circumstances
beyond the Commonwealth's control and despite its due
diligence. “Due diligence is a fact-specific concept that
must be determined on a case-by-case basis. Due diligence
does not require perfect vigilance and punctilious care, but
rather a showing by the Commonwealth that a reasonable
effort has been put forth.” Due diligence includes, inter
alia, listing a case for trial prior to the run date,
preparedness for trial within the run date, and keeping
adequate records to ensure compliance with Rule 600.
Periods of delay caused by the Commonwealth's failure to
exercise due diligence must be included in the computation
of time within which trial must commence.
Commonwealth v. Moore, 214 A.3d 244, 248-249 (Pa. Super. 2019)
(citations omitted).
In Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017), the
Pennsylvania Supreme Court noted that “time attributable to the normal
progression of a case simply is not ‘delay’ for purposes of Rule 600.” Mills,
162 A.3d at 325. Mills rejected a bright-line rule that “ordinary trial
preparation” is “excludible as a matter of course.” Id. at 325, n.1. Instead,
the Mills Court emphasized that “courts of original jurisdiction must apply
judgment in distinguishing between delay attributable to the court and that
which should be allocated to a party.” Id. at 325.
“Once a violation of Rule 600 has been established, ... the inquiry
becomes whether the Commonwealth exercised due diligence in bringing [a
defendant] to trial and if the circumstances occasioning the postponement
were beyond the control of the Commonwealth.” Commonwealth v. Kearse,
890 A.2d 388, 392 (Pa. Super. 2005). “The Commonwealth ... has the burden
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of demonstrating by a preponderance of the evidence that it exercised due
diligence.” Commonwealth v. Cole, 167 A.3d 49, 71 (Pa. Super. 2017)
(citation and quotation marks omitted), appeal denied, 186 A.3d 370 (Pa.
2018).
Instantly, we agree with the trial court that the Commonwealth did not
meet its burden to establish additional time was excusable
under Rule 600. We note that other than the February 25, 2015 bench
warrant, the Commonwealth presented no evidence of its due diligence. See
N.T., 9/20/18, at 6. Although the Commonwealth refers to the total time
excusable, the trial court concluded that the Commonwealth had failed to
establish that it had acted with due diligence during the pendency of this
prosecution. The Commonwealth does not contest the trial court’s finding that
Appellee complied with the special conditions of his bail, notably that he reside
in the NHS group home in Effort, Pennsylvania. See Trial Court Opinion,
11/15/19, at 6. As a result, the Commonwealth also does not challenge the
court’s finding that Appellee “had absconded to cause delay.” Id. at 7.
In sum, having reviewed the record in a light most favorable to Appellee
as the prevailing party and the Commonwealth's limited arguments, the
Commonwealth has not established an abuse of discretion. See Leaner, 202
A.3d at 765-66. The Commonwealth failed to develop an appropriate record
to support its arguments that it exercised due diligence or the delays were
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beyond its control. See Kearse, 890 A.2d at 392; see also Pa.R.A.P. 302(a).
Accordingly, we are constrained to conclude that no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2019
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